The Heyday Judgment on the default retirement age
The High Court has handed down judgment in the “Heyday” case brought by Age Concern and Help the Aged to challenge the default retirement age of 65, arguing that the default retirement age is not proportionate. The High Court found that the Government had proved that the default retirement age was a proportionate means of achieving legitimate social policy such as securing the labour market and its short-term competitiveness.
This means that employers can still continue to retire employees at age 65 providing they follow the correct statutory retirement procedure.
Stayed Employment Tribunal Claims pending Heyday
Claims lodged with Employment Tribunals for unfair dismissal and age discrimination from employees who have been retired since 1 October 2006 had been put on hold. Now that the default retirement age has been upheld, claims where the employer followed the correct statutory retirement procedure will be dismissed or withdrawn. Claims where the employee can show that the statutory retirement procedure was not followed, e.g. because statutory timescales were not followed or the employee was not told of their right to appeal, may still be heard by Employment Tribunal and tribunals may find the employee was unfairly dismissed or discriminated against on grounds of age.
Statutory Retirement Procedure
Employers are required to give at least six months’ and no more than 12 months’ notice of an intended date of compulsory retirement and tell employees they have the right to request not to retire.
A request to continue working must be made by the employee more than three months but not more than six months before the intended date of retirement. The request to continue working may continue indefinitely or the employee can request to continue working until a specified date (e.g. a 70th birthday) or time (e.g. for two years). The employer must arrange a meeting with the employee to discuss the matter. If the employer either refuses the request or grants the request but for a shorter time than requested, the employer must inform the employee of their right of appeal.
The statutory retirement procedure must be followed again if the new agreed retirement date is more than six months after the original intended retirement date or where the employee has been allowed to continue working indefinitely. The employee will still have the right to request to continue working.
Future Implications
The Government is proposing to review the default retirement age next year, which was a factor in the High Court’s decision. Mr Justice Blake commented that he “cannot presently see how 65 could remain as a default retirement age after the review.”
The Equality and Human Rights Commission (EHRC) is to ask the Government to abolish the default retirement age in the Equality Bill which will be debated in the House of Lords soon.
Currently there are 1.4 million people working past the default retirement age, according to the Office of National Statistics, and employers generally grant 80% of all requests to continue working beyond age 65.
If you have any queries about the statutory retirement procedure, please contact Ashley Hunt or Carrie-Ann Randall on 0116 212 1000 now or complete one of the on-line forms.
